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03.13.12

Badger Family Fire Tragedy’s Criminality Will Be Weighed by State’s Attorney

Thousands grieved when Madonna Badger lost her children and her parents in a Christmas-morning fire. Now one man, Connecticut State’s Attorney David Cohen, will decide whether to bring charges of criminal negligence.

Even cops, firefighters, and funeral directors who routinely witness tragedy were stunned by the magnitude of the loss suffered by advertising executive Madonna Badger in the Christmas-morning fire in Connecticut that killed her three young children along with her parents.

Badger somehow managed to deliver a eulogy for 9-year-old Lily and the 7-year-old twins, Sarah and Grace, as they lay before her in three identical coffins in Saint Thomas Church in Manhattan. She then rode in a funeral procession to the chapel at Woodlawn Cemetery in the Bronx, where there awaited the coffins containing her parents, Pauline and Lomer Johnson—five coffins in all. Badger’s father had been Santa at Saks Fifth Avenue. He died in a heroic effort to save one of his grandchildren from a blaze caused by carelessly placed fireplace embers at a pre-dawn Christmas hour when kids imagine the real Santa coming down the chimney. 

Now the state of Connecticut is weighing criminal charges in the tragedy. The decision will not be made by the police or a grand jury. Instead, it rests solely with Connecticut State’s Attorney David Cohen, a prominent rabbi’s son who has established a reputation over more than three decades as a prosecutor who adheres to provable fact and statutory law, independent of public opinion. He may announce his decision within days, but some close to the case expect him to take months.

“He is not going to rush to judgment,” says Badger’s lawyer, Stan Twardy, “which is fair for everybody concerned.”

Twardy adds that his client is not worried that she herself might be charged with criminal negligence in the deaths of the five people she loved most in the world.

“She has no exposure,” Twardy says of Badger.

Twardy insists that Badger is looking forward to a full and thorough report, and adds that he stands in awe of her effort to cope with loss that is beyond comprehension. “Nobody can imagine,” Twardy says. “Nor should we want to.”

His client’s former husband, Matthew Badger, also has suffered the crushing loss of three children. The father has filed papers in Stamford Probate Court seeking to become administrator of his children’s estate in anticipation of a wrongful-death suit whose defendants have yet to be named. The father intends to use any resulting proceeds to fund a foundation that will keep his children’s memory alive by promoting fire safety and undertaking charitable causes in their name and spirit.

“That’s his goal, his quest in life now,” says his lawyer, Richard Emery. “He has no other meaning for his existence.”

Emery emphasizes that his client will not be taking any legal action against his ex-wife, but “he certainly is going to explore all avenues to hold other people accountable for the consequences of what happened.”

Emery has indicated that one of the “other people” will likely be Michael Borcina, who is—or was—Madonna Badger’s boyfriend, as well as the general contractor on the renovation of her $1.7 million home. He was there with her early Christmas morning, and is widely reported to have swept fireplace embers into a paper bag, which investigators believe he then placed either in a mudroom or just outside the house.

The Stamford Fire Department declared the fire accidental, but the question of criminal negligence lingers. Supporting the possibility of negligence was the apparent absence of a working smoke detector in the house—which is required by Connecticut law. Borcina’s workers are said to have been in the process of installing the detectors, but had not yet connected them. A number of battery-powered devices had been installed shortly before a building inspection in the summer, but police believe they may have been removed, perhaps because they were repeatedly set off by dust from the construction. One attorney involved in the case says there may have been a portable detector attached to a length of wood.

Such factors became much more difficult to establish after the Stamford Buildings Department razed the gutted house, citing safety concerns. A stunned police supervisor exclaimed to The Daily Beast, “They actually destroyed the crime scene. Who does that?”

The supervisor said the destruction greatly hampered the police investigation, but there remained one incontestable fact that argues for somebody to be held responsible.

“Five bodies,” the supervisor said. “Three of them children.”

Investigators collected whatever evidence they could and interviewed all possible witnesses, but the police supervisor told The Daily Beast that he wished Connecticut had a grand-jury system where witnesses can be compelled to testify and a prosecutor can, as the saying goes, indict a ham sandwich. In relatively rare cases such as the murder in Greenwich involving Kennedy cousin Michael Skakel where, as the statute puts it, “normal investigative procedures” have either failed or seem likely to fail, Connecticut law allows for an investigative grand jury, albeit made up of a single judge. Otherwise, the decision on whether to bring charges falls to the local state’s attorney, and in Stamford since 2001 that has been Cohen, who came to the job with considerable experience as a more junior prosecutor.

The Stamford Fire Department declared the fire accidental, but the question of criminal negligence lingers.

In a widely publicized 2009 case where a pet chimpanzee chewed off the face of a woman visiting the owner’s home, Cohen spent months reviewing every aspect of the investigation. He chose not to prosecute the owner for recklessness, even though the animal was so agitated before the attack that it had been given tea laced with Xanax. “While Connecticut criminal statutes do have a concept of ‘criminal negligence,’ that standard is only applicable in cases of homicide or assault using a deadly weapon,” Cohen said when announcing his decision.

He added that even if the recklessness standard had been applied, “the state would have to prove beyond a reasonable doubt that the person was aware of and consciously disregarded a substantial and unjustifiable risk.”

The statutory-homicide requirement did tragically apply in the 2007 drowning of a 6-year-old boy who was sucked into a swimming-pool drain. Cohen investigated for more than a year and brought charges of criminally negligent homicide against David Lionetti, CEO of Shoreline Pools, which had installed the drain without a recommended safety device. Lionetti subsequently pleaded guilty.

“We don’t bring cases unless we feel we can prove our case beyond a reasonable doubt,” Cohen said when announcing the charges.

In the swimming-pool case, Cohen noted that Lionetti had allowed his state trade license to lapse and made no effort to renew it. In the Badger fire case, Borcina is reported to have allowed his Connecticut contractor’s license to expire in 2000 and his New York license to expire in 2010. Borcina is also reported to have used the name of another contractor who has a valid license to obtain the necessary work permit for the renovation at Madonna Badger’s home.

Neither Borcina nor his attorney, Eugene Riccio, offered any response to these reports or to other news reports noting that two former customers had successfully brought legal action against Borcina, and are seeking to recover judgments totaling $99,000. Morgan Stanley investment adviser Maurice Sonnenberg had secured an $86,000 judgment for breach of contract on a renovation job in 2004. A woman named Holly Flor from Roxbury, Conn., had secured a judgment for $15,000 after Borcina failed to contest charges that he had botched a 1999 renovation job.

“He was aggressive and arrogant and abusive to those who work for him,” Flor says. “He did not know how to speak to somebody if they did something he thought had not been done right, and I don’t think he thought anything was right unless he did it.”

Flor says that too often what Borcina did was wrong, and he did the work with expensive materials. There was constant turnover in workers and ever-rising costs. “Things just weren’t getting done,” Flor says. “He was going to turn this into a lifetime project.”

She said she and her husband finally took Borcina to court, where they prevailed. But she was left with a lasting impression. “I think Mr. Borcina is a man who lives a negligent life,” she says.

Riccio, Borcina’s lawyer, has declined to make any comment regarding his client, including Borcina’s past legal history and his actions on the morning of the fire. He confirmed on Monday that he still has no comment.

Whether Borcina’s legal history takes a criminal turn is now being determined by Cohen, a prosecutor who is by all accounts the very opposite of negligent.

No legal observers expect that Madonna Badger will be charged. And even such passionate and prominent fire-safety advocates as Vina Drennan do not believe that the mother should be held in any way responsible. Drennan is the widow of an FDNY captain who was terribly burned in a 1994 fire caused by someone who negligently left a pizza box on an oven pilot light. Two of her husband’s firefighters were killed, and the captain himself succumbed after 40 agonizing days in the burn unit.

Had her husband and his comrades been killed by a reckless driver, the driver likely would have been locked up.

“But fire is treated like an act of God,” Vina Drennan has noted.

In circumstances other than the Badger fire, Drennan would likely have been calling for somebody to go to jail for being so casual with embers and so negligent with smoke alarms. But for her, the Badger fire is so overwhelmingly tragic that she says only, “Let’s have some mercy.”